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The Australian Sports Anti-Doping Authority has failed in its attempt to force three reluctant witnesses to testify at the AFL’s anti-doping tribunal hearing, which commences on Monday.
The Supreme Court on Friday refused to issue subpoenas compelling biochemist Shane Charter, compound pharmacist Nima Alavi and an unnamed “support person” to cooperate with the prosecution of ASADA’s doping case against 34 former and present Essendon players.
The anti-doping authority had sought to have the court issue the subpoenas under the Commercial Arbitration Act. But Justice Clyde Croft found that the proceedings before the anti-doping tribunal “are not properly classified as commercial arbitration proceedings to which the Commercial Arbitration Act applies”.
On that basis the application was dismissed, he said.
Charter has admitted to having imported the raw materials necessary to the manufacture of the banned peptide Thymosin Beta-4 and supplying them to Alavi for compounding. Thymosin Beta-4 is the prohibited substance allegedly administered to the 34 players facing doping charges.
Alavi is alleged to have compounded the materials and provided the resulting performance-enhancing peptide to the unnamed “support person”, who is alleged to have administered the substance to the players in an injecting regime that ran throughout 2012.
The relevance of the three to the tribunal hearing was not seriously questioned during the two-day Supreme Court proceeding, which concluded on Thursday.
But that became irrelevant itself when Justice Croft found there was no jurisdiction under the Act to compel their attendance at what was in effect a domestic disciplinary tribunal and not, as ASADA contended, a tribunal of arbitration, as the latter is understood in the international context.
Much of the preceding two days was spent debating the correct characterisation of the relationship between the players, their clubs and the AFL. Daniel Star, representing ASADA, argued that it was primarily a “tripartite” commercial relationship and therefore subject to the Commercial Arbitration Act.
Star reminded the court that Australian Rules Football was “very big business” and said any rule violation which threatened the integrity of the sport was necessarily relevant to its commercial performance. That made it a commercial dispute, he said.
Tony Rodbard-Bean, for Alavi, characterised the relationship as essentially “employer-employee” in nature and the dispute more properly a matter for person-to-person employment law than overarching commercial legislation.
Alavi alone formally opposed the application. Charter provided an affidavit to the court on Tuesday indicating that he wished to adopt Alavi’s grounds of opposition. But he was not a formal party to the case and did not provide a copy of his affidavit to either ASADA or the AFL, as would be the minimum compliance requirements under the Supreme Court rules.
Neither Alavi, Charter nor the unnamed (but probably not entirely mysterious) “support person” attended the court hearing.
Earlier, Star had explained that both Charter and Alavi had been fully cooperative and content to appear at the tribunal until two weeks ago, when their attitudes suddenly changed. It remains to be seen whether ASADA’s prospects at the tribunal suffer a similar volte-face.
David Ward
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